NOTES OF CASES
| Date | 01 January 1951 |
| DOI | http://doi.org/10.1111/j.1468-2230.1951.tb00191.x |
| Published date | 01 January 1951 |
NOTES
OF
CASES
TREATIES
BEFORE
MUNICIPAL
COURTS
IN
breach of obligations which the United Kingdom assumed by a
treaty with Italy and which, in effect, provided
for
the release to
the order of the Italian Government of all assets belonging
to
Italian
~icttionals, the Board of Trade released the property of the late King
of
Italy to the administrators
of
his English estate. When the
Republic of Italy instituted proceedings to recover the property,
its action was dismissed on the paramount ground that the treaty
had not been
so
incorporated into the law of England as to enable
the court to hold that the release ordered by the Board of Trade
was unlawful:
The
Republic
of
Italy
v.
Humbros
Bank
[1950]
Ch.
814.
some
bewilderment
’
and in vain searched for some explanation of what
is to me inexplicable
’
(p.
839).
From the point of view of public
international law the result is indeed a stain on English law,
however inevitable
it
may have been in the present state of the
authorities, for a treaty has been allowed to be displaced by English
municipal law. Would it not have been possible and perhaps
necessary to uphold the treaty by resorting to the doctrine of public
policy?
Do
not the highest interests of State require refusal of
recognition to such acts
of
the government as are plainly incon-
sistent with the treaty obligations solemnly undertaken by the
government on behalf of the Crown
?
Undoubtedly,
‘
wherever
sovereign nations have contracted upon sovereign matters, the
effect is a species of obligations
ex
quo
non
oritur
uctio
))
:
Nabob
of
the
Carnutic
v.
East
Indin
Co.
(1791)
1
Ves.Jr.
870, 889, 890,
per
Lord Thurlow, and many later authorities. But although no
party to a treaty can invoke municipal jurisdiction for the purpose
of enforcing its terms, this does not lead to the further rule that
the breach of some principle of municipal law is required, and the
breach of an international obligation is insufficient, to support a
violation of public policy. Where
it
is the Executive that has
broken the terms of a treaty, it is not too much to say that to
sanction the breach is opposed to those standards of conduct and
that rule
of
law
which this country
is
striving to maintain. Even
a
private person who violates those standards of international con-
duct by contemplating action hostile to a friendly State will find
his
contract stigmatised as irreconcilable with public policy and,
therefore, illegal:
De
Wiitz
v.
IIcndricks
(1825)
2
Bing.
816.
The
standards applicable to the Executive should be more, not less,
severe. Courts have been prone to derive legal maxims from the
alleged necessity for conforming with the Executive’s conduct
of
64
In reaching this result Vaisey
J.
confessed to
JAN.
1951
NOTES
OF
CASES
6.5
foreign affairs (see Judiciary and Executive in Foreign Affairs
’
in
Transactions
of
the Grotius Society,
1943, 143).
The courts
should be even more willing to make the Executive itself abide by
the obligations contained in treaties and for this purpose, while not
allowing the terms of a treaty to be enforced by action in
B
municipal court, to refuse sanction to a breach of a treaty. In
1888
Maitland said
(The
Constitutional History
of
England,
p.
425)
:
Suppose the Queen contracts with France that English iron
or
coal
shall not be exported to France,-until a statute has been passed
forbidding exportation, one may export and laugh at the treaty
’.
Even if this remains true today as a general proposition, the
Executive ought not to be allowed
so
to laugh.
F.
A.
MANN.
THE
TIME
OF
PAYMENT
OF
CHEQUES
IF
a debtor pays his creditor by means
of
a cheque it is trite law
that in the absence of evidence to prove that the creditor took the
cheque in satisfaction of the debt the implication is that the receipt
of the cheque operates
BS
a conditional payment (see
Uyles
on
Bills,
20th ed.,
311)
:
if the cheque is not paid at the due date the original
debt revives, and can be enforced by action
(ibid.,
p.
812,
and
authorities cited). What had never been determined until
Re
Hone
[l950]
2
All
E.
R.
716
was as to the precise point in time at which
the creditor is to be regarded as having received the money; is it
when he takes the cheque
or
when the cheque is paid? According
to Harman
J.
in that case the latter is the correct view, at any rate
for purposes of bankruptcy.
On the face of it the point appears to be an elementary one, and
one of importance, and it seems strange that it should have gone
so
long undecided. On reflection however it is difficult to imagine
rases where
it
would be likely to arise, apart
of
course from bank-
ruptcy. Nevertheless it is clearly one
of
much interest, and
it
seems
a pity that the learned judge should have dealt with it in
a
sonie-
what perfunctory manner, brushing aside in his judgment earlier
opinions which
if
they did not decide the matter, at any rate,
it
is
submitted, throw a good deal of light upon it. Nowhere in his
judgment is any appreciation shown of the nature of a condition
subsequent, nor in
so
far as the matter is to be determined on the
basis of the provisions of the Bankruptcy Act,
1914,
does he at any
point have regard to what are the
sort
of considerations which should
govern the protection
of
transactions from the operation of the
bankruptcy law.
The facts
of
Re
Ilotte
shortly were that
Mrs.
Hone paid to
the Kensington Borough Council
a
rate demand by means
of
a
cheque. Shortly after the cheque had been paid into the Council’s
banking account, and before it had been collected
Mrs.
Hone
was
\’or,.
Id.
5
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